Rumsfeld to be Sued for War Crimes in Germany

It appears Secretary of Defense Donald Rumsfeld is about to be charged with war crimes in Germany. According to a Time Magazine report, several legal advocacy groups are going to file charges on Monday against Rumsfeld, CIA Director George Tenet, Attorney General Alberto Gonzales, and several generals. The charges are for war crimes on the basis that they had direct knowledge of or oversight of prisoner abuse at Abu Ghraib and Guantanamo.

The lawsuit is based on a similar suit from 2004, which was brought by the New York-based Center for Constitutional Rights and Germany's Republican Lawyers Association on behalf of five Iraqis allegedly mistreated by U.S. soldiers. The new suit has been expanded to include more plaintiffs, among them: Mohammed al-Qhatani, the "20th Hijacker" from the 9/11 attacks, and more far-left legal advocacy groups like the National Lawyers Guild and International Federation for Human Rights have signed on.

The suit will be filed under an unusual 2002 law, which claims German courts have universal extraterritorial jurisdiction in the case of war crimes and crimes against humanity. It also holds military commanders liable for actions committed by their subordinates. The original suit was dismissed by the German courts in 2005 and dismissed again on appeal, but the effort to bring charges was revived this week when Rumsfeld resigned, thereby losing some of the legal protections he had as a government official.

The reassertion of the suit is also motivated by a presumption that the U.S. justice system would not pursue charges, especially in light of the protections afforded officials under the new Military Commissions Act. Michael Ratner of the Center for Constitutional Rights commented: "The utter and complete failure of U.S. authorities to take any action to investigate high-level involvement in the torture program could not be clearer."

Secretary Rumsfeld is the primary target of the suit because he is alleged to have authorized specific interrogation techniques, including "the use of dogs, stripping, hooding, stressed positions, chaining to the floor, sexual humiliation and those types of activities," according to Ratner of the CCR.

Marjorie Cohn, President of the National Lawyers Guild observed:

Even though Rumsfeld didn't personally carry out the torture and mistreatment of prisoners, he authorized it. Under the doctrine of command responsibility, a commander can be liable for war crimes committed by his inferiors if he knew or should have known they would be committed and did nothing to stop or prevent them. The U.S. War Crimes Act provides for prosecution of a person who commits war crimes and prescribes life imprisonment, or even the death penalty if the victim dies.

The Pentagon has called the lawsuit "frivolous," "absurd," and "politicized." The news of the charges is just starting to circulate, but the suit is already being cited as the first step in an expected circus of witch hunt-style investigations and trials involving the Bush administration.

Whether the suit will be successful is debatable. It may never actually get to court, but it's great publicity and great copy for the news media.

The first major problem it faces is the fact there's no reason to expect the German government to follow through on a case which is substantially identical to one it dismissed in 2005 and then dismissed again on appeal, especially with a new administration which is harder on terrorism and more pro-American.

Another problem is the Germany's 2002 war crimes law's extraordinarily broad claims of jurisdiction are not recognized by the United States or even by international courts, so the inability to actually punish the subjects of the suit may get it dismissed as a waste of time and resources.

Because of these problems, the decision to go forward with the case would be inherently political and only makes sense if the German government has a desire to make a political point and a willingness to antagonize the United States. Actual prosecution of the case seems improbable, but it's still an excellent way for these activist groups to draw attention to their cause.

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About Dave Nalle

Dave Nalle is Executive Director of the Texas Liberty Foundation, Chairman of the Center for Foreign and Defense Policy, South Central Regional Director for the Republican Liberty Caucus and an advisory board member at the Coalition to Reduce Spending. He was Texas State Director for the Gary Johnson Presidential campaign, an adviser to the Ted Cruz senatorial campaign, Communications Director for the Travis County Republican Party and National Chairman of the Republican Liberty Caucus. He has also consulted on many political campaigns, specializing in messaging. Before focusing on political activism, he owned or was a partner in several businesses in the publishing industry and taught college-level history for 20 years.

Your headline “Rumsfeld to be Sued for War Crimes in Germany” is wrong.

Germany is a free country, i.e. every nutcase can go to a prosecutor.

The German prosecutors have not made any decision in this matter yet

The plaintiffs are Iraqis, not Germans. The plaintiffs are supported by an American NGO, not a German NGO. They WANT to have a criminal investigation in Germany, but it is doubtful whether they will get one.

They have not even contacted the German prosecutors yet. They have just issued a press release, picked up by TIME magazine. That’s all that happened, but the American blogosphere goes ballistic and blames Germany, although Germany has not done anything. Crazy.
Apparently, many American bloggers are so convinced that Germans are Anti-American that they can’t see straight anymore.

It makes it seem very much as if it’s Americans taking advantage of German law for political advantage in America.

Agreed. My comment was directed at the idea that the Germans would have the chutzpah to pass such a law.

Baronius

Yeah, the law is pretty aggressive, but I kind of respect the Germans for it. It avoids the loss of soveriegnty that comes from a ‘world court’. Instead, the German government claims soveriegnty over the world, and I can see how that could be scary, so this case will be worth watching.

Your headline “Rumsfeld to be Sued for War Crimes in Germany” is wrong.

No, it’s in the future tense. He’s going to be sued next week. And sued does not mean prosecuted. The groups mentioned in the article are going to file a suit. What a prosecutor does with it remains to be seen. This is very clear in the article.

Germany is a free country, i.e. every nutcase can go to a prosecutor.

The German prosecutors have not made any decision in this matter yet

Yes, this is what the article says, in fact.

The plaintiffs are Iraqis, not Germans. The plaintiffs are supported by an American NGO, not a German NGO.

They are supported by multiple American NGOs and as far as I know at least one German group.

They WANT to have a criminal investigation in Germany, but it is doubtful whether they will get one.

Which ius the same conclusion I make in the article.

They have not even contacted the German prosecutors yet. They have just issued a press release, picked up by TIME magazine. That’s all that happened, but the American blogosphere goes ballistic and blames Germany, although Germany has not done anything. Crazy.
Apparently, many American bloggers are so convinced that Germans are Anti-American that they can’t see straight anymore.

I believe that if you read this article you’ll see that I’m hardly giving undue legitimacy to this suit. Every issue you raise is covered in the article. From what I’ve seen there has also been very little reaction on blogs. At the time I wrote the article there were exactly 3 articles out on it, one from Time and two were the press releases of the organizations involved.

If Americans are objecting, I suspect they are objecting to what Clavos has pointed out here, the presumptuous of the German legal system in claiming universal jurisdiction.

German prosecutors have dismissed similar cases in the past.

Again, as is expalained in the article.

Perhaps before you get all hot and bothered about an article you shoult take a few minutes to read it.

Dave

Dr. Kurt

As far as I can figure, war is the ultimate crime; murder, child abuse, environmental degredation. Should anyone be above the reach of basic law and justice? Why is that a problem, or “political”?

As far as I can figure, war is the ultimate crime; murder, child abuse, environmental degredation. Should anyone be above the reach of basic law and justice? Why is that a problem, or “political”?

No one should be above the reach of justice. The problem here is one of jurisdiction and national sovereignty. Germany is essentially claiming jurisdiction over other countries with this law. Should the US be able to do the same? Do people in Germany want us to come over there and start seizing terror suspects? The idea of universal jurisdiction totally flies in the face of the traditions of international law and can lead to all sorts of problems. War crimes and the like ought to be tried either in the country involved or in an international court, not in the courts of a third party who thinks they have universal authority.

Though, the first sentence of your post reads: “It appears that Secretary of Defense Donald Rumsfeld is about to be charged with war crimes in Germany.”

That’s the ‘grabber’. It’s designed to pique the interest of the reader. And certainly the groups involved in this suit want it to appear as if Rumsfeld is being charged. The article then goes on to point out how that impression is unfounded.

I find the anger of Americans at the “hubris” of the Germans rather amusing. This same trash goes on in Europe where Israeli miliary officiers have to worry about not being arrested in various European countries for “war crimes” and nobody says boo. Now that an American NGO has taken advantage of this German law to attempt to bring an American official to justice, as it were, Americans are suddenly discovering German hubris.

Let me get the shoehorn to help you all wear the new shoes of “world justice.” They might cause a few blisters and pains as you lose your sovereignty to international law and international world opinion, but eventually they’ll fit just fine…

John Q. Public

And I find it more than amusing that someone who advocates that a small ethnic minority are the Chosen of God should even begin to mention hubris about any other human being’s actions.

I also recognize the fact that the legal opinions of White House Counsel, who is now the Attorney General, to remove the U.S. from any kind of world court oversight was done years in advance for just this contingency.

If memory serves, the USA already has some laws where it claims jurisdiction outside of its borders. Are we opposed to that too?

Clavos

This same trash goes on in Europe where Israeli miliary officiers have to worry about not being arrested in various European countries for “war crimes” and nobody says boo.

Not the same thing Ruvy.

Any country has the right to pass laws and enforce them within its own borders.

What I called “hubris” was the Germans’ unilaterally passing a law they claim has force outside their borders. If the Germans were to pass a law enabling them to arrest an Israeli officer in, oh I dunno, Hoboken, for any reason, including war crimes, I would characterize that as hubris, too.

Clavos

If memory serves, the USA already has some laws where it claims jurisdiction outside of its borders.

I’m not aware of that. What are they, CR?

John Q. Public

Well then Clavos, what are your thoughts on the Military Commissions Act?

Since it is now U.S. law that anyone can be arrested and confined without trial, waterboarded into confession, and have that confession as well as hearsay evidence also gained form torture, used against them in a closed trial without the benefits of habeus corpus?

the hubris of the White House far outstrips anything the German law even attempts, and as has been pointed out above, no U.S. citizen has been prosecuted under said law, yet.

If memory serves, the USA already has some laws where it claims jurisdiction outside of its borders.

It’s not impossible, but I can’t think of any offhand. And if such laws exist they’re just as stupid and worthless as the one in Germany.

The US does believe in more standard ideas like extradition for crimes. Like most nations we expect other countries to return criminals indicted in our courts to us.

This is another area where Europeans have been pretty high handed, as with France which has refused to return some murderers to the US because we might execute them – in effect trying to impose their legal standards on us.

Since it is now U.S. law that anyone can be arrested and confined without trial, waterboarded into confession, and have that confession as well as hearsay evidence also gained form torture, used against them in a closed trial without the benefits of habeus corpus?

That’s hardly an accurate description of the MCA, but I guess you pick your information on GOP policies up second hand. The MCA prohibits waterboarding and evidence based on torture, plus the ‘hearsay’ evidence provision has some relatively sound reasoning behind it, even if I don’t agree with that aspect or the habeas corpus exceptions.

the hubris of the White House far outstrips anything the German law even attempts, and as has been pointed out above, no U.S. citizen has been prosecuted under said law, yet.

The same cannot be said about the U.S. law.

I hate to be pedantic, but no one has been prosecuted under the MCA yet either.

The German law makes no such distinction; it attempts to allow the Germans to prosecute anyone, even if the “crimes” are not committed against Germany or its citizens.

Hubris.

Martin Lav

In case you missed the point of Nalle’s article:

“the suit is already being cited as the first step in an expected circus of witch hunt-style investigations and trials involving the Bush administration.”

and to prove the point:

“Actual prosecution of the case seems improbable, but it’s still an excellent way for these activist groups to draw attention to their cause.”

It would appear that Bush Administration supporters are lying in wait for just such fodder to prove their witch-hunt assertions that the LEFT will certainly unleash based on last weeks election results.

Deny Nalle?

John Q. Public

Clavos, what you fail to mention is that only an unfounded accusation is required to categorize an individual under said law.

If the President accuses someone, they are then categorized, with no recourse to a judge to rectify any errors.

In some cases, specifically Iraq, we are talking about a pre-emptive invasion, and citizens of that country being assigned into the category you mention.

I’m not excusing the German law, what I am saying is that under this Administration, the U.S. is doing at least as poorly, if not more so when it comes to the hubris allegation.

John Q. Public

Dave, in your comment 21, you make some good points, but miss out on others.

A simple example is that the U.S. has already held and tortured prisoners before the MCA was signed into law, based on the legal writings of now Attorney General Gonzalez.

And the hearsay as well as waterboarding testimony is scheduled to be used against Khalid Sheik Mohammed and others, according to White House and Pentagon statements.

I can easily agree that both the German law, and the American one are bad. I merely pointed out that in no way can the U.S. claim innocence or hubris in the light of what this administration has done for the last few years.

Clavos

Not unfounded, JQP:

From Wikipedia:

“Section 948a of title 10 of the United States Code, as added by the Act, defines an “unlawful enemy combatant” as:”

ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. (emphasis mine), and;

“The criteria by which a Combatant Status Review Tribunal might determine someone to be an unlawful enemy combatant under section ii of the definition are provided by the Detainee Treatment Act of 2005, and referenced in section 10 of the Military Commissions Act of 2006.”

Not an “unfounded” accusation.

Once declared, the accused, under the provisions of the MCA, is afforded a trial with defense counsel.

And, regarding Habeas (also from Wiki):

“Legal and Constitutional scholar Robert A. Levy commented that the Act denies habeas rights only to aliens, and that U.S. citizens detained as “unlawful combatants” would still have habeas rights and could challenge their indefinite detention. While formally opposed to the Act, Human Rights Watch has also concluded that the new law limits the scope of trials by military commissions to non-U.S. citizens including all legal aliens. CBS legal commentator Andrew Cohen has commented on this question and writes that the “suspension of the writ of habeas corpus – the ability of an imprisoned person to challenge their confinement in court—applies only to resident aliens within the United States as well as other foreign nationals captured here and abroad” and that “it does not restrict the rights and freedoms and liberties of U.S. citizens anymore than they already have been restricted”.

I see no reason why the US doesn’t have the right to deny Habeas to non citizens who are committing unlawful acts of war against the US and/or its citizens.

John Q. Public

Clavos, I understand what was written, and that it will need to be forced into judicial review.

Meanwhile, we will just have to disagree. Since there are people being held prior to the MCA being passed, as well as the domestic case involving Jose Padilla.

As I said previously, referring to the German laws as hubris while having black ops prisons, extrodinary renditions to places like Syria, and a Vice President who believes that waterboarding is a “no brainer” creates a fine example of pot and kettle.

“And I find it more than amusing that someone who advocates that a small ethnic minority are the Chosen of God should even begin to mention hubris about any other human being’s actions.”

I didn’t write the Torah, JQP. I happen to believe in its truth, that’s all. That is not called “hubris,” but “trust.”

If that bothers you, tough shit.

John Q. Public

What you believe doesn’t bother me at all. That you believe it to be absolutely true is your own affair as well.
Yet time and again, you make assertions based on being god’s chosen people who were told they could have land owned by others.
That is hubris, if it bothers you, you might want to rethink the concept that any people are inherently better or worse than any others simply due to who their mother was.
Oh yes, you kiss your kids with that mouth?

It would appear that Bush Administration supporters are lying in wait for just such fodder to prove their witch-hunt assertions that the LEFT will certainly unleash based on last weeks election results.

Deny Nalle?

Why on earth would I deny something which clearly implied in my article?

Not that I don’t think there will be a witchhunt, but I also think it will get played up disproportionately by the right. So many opportunities for propagandizing coming up in the next few months.

A simple example is that the U.S. has already held and tortured prisoners before the MCA was signed into law, based on the legal writings of now Attorney General Gonzalez.

And the hearsay as well as waterboarding testimony is scheduled to be used against Khalid Sheik Mohammed and others, according to White House and Pentagon statements.

Yes, the MCA allows prior evidence to be grandfathered in no matter how it was obtained, but it does prohibit future torture.

I can easily agree that both the German law, and the American one are bad. I merely pointed out that in no way can the U.S. claim innocence or hubris in the light of what this administration has done for the last few years.

What can or cannot be said about the US has no bearing on whether or not the German law is excessive.

Dave

stan

didnt they withdraw from the human rights council (if thats the correct name)? why would an administration that stands for “freedom and democracy” withdraw from a council that falls right under that?? makes no sense.

Mick M

Why is Bush being charged? Is the blame shifting to everyone else, which was probably Bush’s plan in the first place?!

Mick M

Why isn’t Bush being blamed?

S.T.M

Does anyone fair-dinkum believe this is really going to happen? Makes for good copy, but here’s my bet: Rumsfeld won’t answer for any of this and nor will his cronies.

And while we’re at it, if we’re talking war crimes, and I know the war in Iraq and the war on terror are in reality two different things, when are the bastards who ordered jets into the WTC and who let off bombs wherever they get the urge going to be dragged up before a war crimes court?

Let’s get fair-dinkum here and our perspectives in order. One can hardly blame the US for being a bit on the belligerent side in the wake of 9/11.

Not saying all of it’s right, but at least they bring a sense of justice and some compassion to the table.

didnt they withdraw from the human rights council (if thats the correct name)? why would an administration that stands for “freedom and democracy” withdraw from a council that falls right under that?? makes no sense.

Are you talking about the human rights council of the UN or some other group? If the former, as a security council member we’re automatically on it, although it did recently change composition as terms expired. If it’s the latter, I don’t know about it. I do know the US has withdrawn from some international groups because their application of human rights principles was selective and politically motivated.

Why isn’t Bush being charged? Is the blame shifting to everyone else, which was probably Bush’s plan in the first place?

I’m actually surprised they went so far as to include Rumsfeld, Tenet and Gonzales in the suit. To bring the charge they have to somehow prove direct knowledge of or responsibility for the crime. In other words they have to be able to prove that someone gave the order to do the crime with full and specific knowledge of what the result would be. Bush likely gets off because he was unaware of the specific techniquest involved.

Plus, the whole thing kind of falls apart around the definition of a war crime. Very little that was done comes close to falling into standard criteria for war crimes. They clearly want to expand the definition of a war crime fairly substantially so that the US’s actions will fit. Interrogation techniques which are essentially psychological have never been grounds for war crimes trials in the past.

Dave

D’oh

in Nuremburg, people were prosecuted, tried and convicted of water boarding as a war crime.

the prosecutors were Americans, the defendants, Germans

how far some have fallen

Nancy

Pity they don’t extend the lawsuit to Dubya & Cheney, too, while they’re at it. After all, isn’t the “Decider in Chief” also the commander of the US Armed Forces? I doubt anyone could made a credible argument that he & Smilin’ Dick were not aware of the situation. Even if it’s only an empty gesture, it would be a nice one. A conviction in world court on moral & ethical issues: a nice memento for Junior to take with him as a legacy of his failed, disastrous, mismanaged, inept presidency.

Clavos

Nancy,

A conviction in world court on moral & ethical issues: a nice memento for Junior to take with him as a legacy of his failed, disastrous, mismanaged, inept presidency.

We’re not talking about a “world court” here, Nancy. We’re talking about a law the Germans have passed with which they have arrogantly bestowed upon themselves jurisdiction over the whole world.

Martin Lav

“Why on earth would I deny something which clearly implied in my article?” — Nalle

I must have missed that point, Dave, can you copy and paste for me please? I mean I know that you believe the left will be on a witch hunt for sure, but where in the article did you state the right’s paranoia (other than your illustrative example of the fact that you wrote this article) and their traversing through streams to mask their scent?

Lumpy

Nice subtle godwinism there, D’Oh.

BTW, who was convicted of a war crime for waterboarding at Nuremberg. Never heard that before.

I’m not going to comment on Malachi Ritscher beyond saying that having read some of his writing – including his obituary for himself – anything I could say would earn me so much abuse that I’m just shutting up.

I don’t believe anyone at Nuremberg was prosecuted for waterboarding. They had bigger fish to fry. The US did prosecute a Japanese officer for doing it to POWs during WW2 and he got 15 years in prison, but to be fair he was convicted for war crimes based on a long list of torture techniques, most of them far worse than waterboarding.

Dave

Nancy

Clavos #39: Gee, just like BushCo, bestowing powers on themselves! Well, they do say imitation is the sincerest form of flattery….

“Let’s get fair-dinkum here and our perspectives in order. One can hardly blame the US for being a bit on the belligerent side in the wake of 9/11.”

The way i understood fair-dinkum it would include what’s good for the goose is good for the gander.

One might say that after the extremely racist treatment of many semetic peoples by our US culture, corporations, and military (not to mention the ongoing racist pogrom/holocost versus semetic peoples, by europeans, in the name of Semetism – Isreal), that one could hardly blame the terrorists for being a bit on the belligerant side the day of 9-11 2001.

600,000 Iraqis are dead, this makes 9-11 seem a bit like just a little bit.

What is the ratio at which european descended (
presumed, but not neccessarilly) persons killing semetic peoples in revenge reaches fairness in your eyes? currently we’re way past 100/1.

In my opinion that is the definition of Racism, each of us are worth 100+ of you.

Just saying that there is a legitimacy to my response with violence to your response with violence to my response with violence… et cetera, does not make it so.

The fact that one can call Germany’s law hubris, and that one cannot see the irony of a US group needing to file a claim against US war crimes in Germany is to me the greatest of hubris.

In defense of a nation that breaks treaties on a whim? invades any country were it claims some of it’s tourists are in danger? prosecuted into action laws at Neuremburg that it never did, nor ever intend to, follow themselves?

Some of you seem to have an excuse for not knowing US and Israeli history, but those of us who are citizens, and who’s taxes have been paying for terrorism in our name for more than a century, have no such excuse.

I have faint hope that such a toothless trial will proceed, but I dearly hope so nonetheless.

Having been in the armed services of these United States, I am well aware of the sense of immunity to international law that pervades there, and feel it imperative to human survival to win such a minor political victory over the growth of Illegal Empire.

zingzing

Malachi Ritscher did say some things that were a bit… looney. to use the right’s favorite word.

but, he did what he did, and he didn’t do what he didn’t do… so…

it’s a toss up… who knows the real reasons behind what he did. it certainly made a statement.

Martin Lav

I hate the French.

SHARK

John Q. Public: “…referring to the German laws as hubris while having black ops prisons, extrodinary renditions to places like Syria, and a Vice President who believes that waterboarding is a “no brainer” creates a fine example of pot and kettle.”

—THE COMMENTS SECTION IS NOW CLOSED
DUE TO BRILLIANT, CONCISE SUMMARIZATION/REFUTATION —

One might say that after the extremely racist treatment of many semetic peoples by our US culture, corporations, and military (not to mention the ongoing racist pogrom/holocost versus semetic peoples, by europeans, in the name of Semetism – Isreal), that one could hardly blame the terrorists for being a bit on the belligerant side the day of 9-11 2001.

One might hope that when going on a racist tirade you might AT LEAST learn how to spell ‘semite’.

600,000 Iraqis are dead, this makes 9-11 seem a bit like just a little bit.

Actually, historically there are probably in the neighborhood of 100 million dead Iraqis/Mesopotamians since 5000 bc – would you like to blame all of those on the US too?

What is the ratio at which european descended (
presumed, but not neccessarilly) persons killing semetic peoples in revenge reaches fairness in your eyes? currently we’re way past 100/1.

Israelis are Semites, Arabs are Semites. The European-related people who are killing the most would be the Iranians.

The fact that one can call Germany’s law hubris, and that one cannot see the irony of a US group needing to file a claim against US war crimes in Germany is to me the greatest of hubris.

They can and have filed civil suits here in the US and got about as far with them as they will with this suit in germany.

Dave

zingzing

dave, yer losing it. neither one of you (you or monte) make any sense…